Jacobsen v. Jacobsen (D.C. Cir. 1941)

United States Court of Appeals

for the

District of Columbia Circuit

TRANSCRIPT OF
RECORD

BRIEF AND APPENDIX
FOR APPELLANT

30Ur?T0F A«- KtALS FOR THE
D 1STKlCT UK UGt-UMBiA

United States

m THi il ® Ju » 1 : 91841

LourFot Appe

ERK

for the District of Columbia

No. 7845

CHARLES J. JACOBSEN, Appellant;

V.

NORVELLE H. JACOBSEN.

Appeal from Order Denying Motion to Quash Writ of Ne
Exeat in the District Court of the United States for the
District of Columbia.

Robert E. Lynch,

Attorney for Appellant,
821 15th Street, N. W.,
Washington, D. C.

Pszss or Byeon S. Adams, ■Washington, D. 0.

INDEX.

Subject Index. Page

Jurisdictional Statement . 1

Statement of Case . 2

Statement of Points... 4

Summary of Argument. 4

Argument. 5

Table of Cases Cited.

Church v. Church, 50 App. D. C. 239; 270 Fed. 361. 5

Engle v. Manchester, 46 App. D. C. 220 . 8

Ginsberg & Sons v. Popkin, 285 U. S. 204. 10

Hollidge v. Crumpler, 63 App. D. C. 330; 72 Fed. (2d)

381. 8

Jastram v. McAuslam, 31 R. I. 274; 76 A. 648. 10

McPartland v. McPartland, 261 N. Y. Supp. 847; 146

Misc. 672 . 12

Prescott v. Prescott, 95 N. J. E. 173; 122 A. 611. 6

Shainwald v. Lewis, 46 Fed. 839 . 12

Statutes Involved.

28 U. S. C. A. sec. 376 (Judicial Code Sec. 261, 36 Stat.

1162). 12

Title 18, Sections 44, 57, Code of Laws for the District

of Columbia. 1

Title 18, Section 26, Code of Laws for the District
of Columbia. 1

IN THE

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United States Court of Appeals i

for the District of Columbia

Term, 1941.

No. 7845.

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CHARLES J. JACOBSEN, Appellant ,

v.

NORVELLE H. JACOBSEN, Appellee.

BRIEF AND APPENDIX FOR APPELLANT.

JURISDICTIONAL STATEMENT.

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This is an appeal from an order of the District Court! of
the United States for the District of Columbia refusing to
quash a Writ of Ne Exeat and continuing said Writ in
force. The said Writ was issued after final decree in a idi-
vorce suit between the parties. The jurisdiction of the
lower court is supported by Title 18, Sections 44 and 57,
of the Code of Laws for the District of Columbia. Tkiis

Court has jurisdiction upon appeal by virtue of Title
Section 26, of said Code.

18,

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STATEMENT OF CASE.

Upon complaint for divorce, alimony and custody of child
filed by appellee in the District Court in June, 1935, that
Court in June, 1935, ordered alimony pendente lite and cus¬
tody of child to appellee and, thereafter, in February, 1937,
entered a final decree of divorce a mensa et thoro in favor
of appellee, as well as awarding custody of child and main¬
tenance for appellee and child. (Appellant’s App. 2.)

In January, 1941, appellee filed complaint for Writ of
Ne Exeat (Appellaint’s App. 3), and the District Court, in
an ex parte proceeding, ordered the Writ to issue (Appel¬
lant’s App. 6); and appellant posted a thousand dollar
bond. A motion to discharge the Writ of Ne Exeat for
want of jurisdiction was timely filed (Appellant’s App. 10),
and denied by the Court on February 20,1941. (Appellant’s
App. 17.) Thereafter, a motion for rehearing and recon¬
sideration of this motion, together with a motion to dis¬
charge the Writ of Ne Exeat on the merits, was filed on
P^ebruary 28, 1941 (Appellant’s App. 17), which said mo¬
tion was also denied on March 31, 1941. (Appelant’s App.
23.)

All of the proceedings involved in this appeal occurred
subsequent to the final decree of the Court awarding the
appellee a divorce a mensa et thoro . Appellee’s original
complaint was filed in June, 1935, and from that month
appellant complied with the order of Court for temporary
alimony and maintenance for his wife and child until the
final hearing of the cause which occurred in February, 1937,
resulting in a decree for a divorce a mensa et thoro , ali¬
mony and custody of child to the appellee. This final de¬
cree was complied with until January 15, 1939, when ap¬
pellant’s employment, through no fault of his, was ter¬
minated, and from early in 1939 to January, 1941, he was
in arrears under the final decree.

Appellant was employed at Norfolk, Virginia, from Feb¬
ruary, 1938, until the first part of 1939 (Appellant’s App.
20), and while out of the jurisdiction and employed com-

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plied with the order of Court. (Appellant’s App. 20.)
After the loss of his regular employment, he did odd jjobs
in Virginia, Maryland and the District of Columbia and
earned a total sum during these two years of approximate
Two Hundred Seventy-five dollars. (Appelant’s App. ^0.)

Appellant attempted, without success, to secure an abso¬
lute divorce in the courts at Norfolk, Virginia, and there¬
after secured a Reno, Nevada, divorce.

While residing in Reno, Navada, appellant was indicted
by a grand jury in the District Court of the United States
for the District of Columbia, said indictment being (re¬
turned in the month of October, 1940. Appellant was Ar¬
rested in Reno, Nevada, and, in order to secure his release
from jail, a thousand dollar bond was posted for him. j A
member of the bar of this Court, representing appellant,
advised him that extradition proceedings would be insjti-
tuted unless he voluntarily returned to the District of Co¬
lumbia and gave bond in the District Court therein, whijch
would have to occur on or before February 1, 1941. (Ap¬
pellant’s App. 13-14.) In view of the instructions from his
counsel, appellant returned to the District of Columbia the
latter part of December, 1940, and thereafter furnished
bond for his appearance in the criminal case. (Appellant’s
App. 13.) While appellant was still in the District of Co¬
lumbia appellee filed her petition for a Writ of Ne Exeat on
the 13th day of January, 1941. (Appellant’s App. 3.)

Motion to quash the Writ of Ne Exeat was filed on t^e
ground that appellant w r as in the jurisdiction in response
to a criminal indictment and was exempt from civil process.
(Appellant’s App. 10.) This contention was overruled and,
thereafter, appellant asked for a reconsideration on thjs
ground and answered the complaint for a Writ of Ne Exeat
on its merits (Appellant’s App. 17), and this also w$s
denied, and the Writ of Ne Exeat continued in force. (Ap¬
pellant’s App. 23.) It is from this action that the appel¬
lant appeals.

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STATEMENT OF POINTS.

1. The District Court should have granted the motion
to quash on the ground that the Court was without jurisdic¬
tion to issue the Writ of Ne Exeat.

2. The District Court erred in continuing the Writ of
Ne Exeat in force after the appellant had answered the
petition for the Writ on the merits.

SUMMARY OF ARGUMENT.

I.

The District Court was without jurisdiction to issue the
Writ of Ne Exeat because its appears that he was involun¬
tarily appearing in the District of Columbia as a result of
an indictment pending against him for non-support. Ap¬
pellant was required to appear in the District Court and
answer indictment or else be forcibly returned by extra¬
dition ; and, in either event, his presence in the District of
Columbia "would be involuntary, and the Court would, there¬
fore, have no jurisdiction to issue the Writ of Ne Exeat.

II.

After the Court had refused to quash the Writ of Ne
Exeat on the jurisdictional ground, the Court was requested
to grant a rehearing and a reconsideration of this motion
or, in the alternative, to discharge the Writ of Ne Exeat
on the merits. The appellant urged the lower court that,
on the merits as set forth in the complaint for the Writ of
Ne Exeat filed on behalf of appellee, there were not suffi¬
cient facts set forth which would warrant the issuance of
the Writ, and as appellant had answered the petition on
its merits the Court was requested to consider the answer
of the appellant and lo take testimony on any disputed
question of fact raised by the pleadings which would bear
on the question of whether or not the Writ was properly
issued. Something more than mere absence from the juris¬
diction and failure to comply with a decree for alimony

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must be shown before the Writ of Ne Exeat will issue. The
Court denied the motion for a rehearing on the jurisdic¬
tional ground and on the merits, and continued the Mfrit
in force.

ARGUMENT.

POINT I.

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The Court Should Have Quashed the Writ of Ne Exeat j on
the Ground that the Court Was Without Jurisdiction

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to Issue the Same.

Appellant’s motion to discharge the writ of ne exeat \sfas
based on the contention that his presence and appearance
in the District of Columbia was involuntary. The plead¬
ings show without contradiction that he had been indicted
for non-support and by his affidavit it is disclosed that Ins
attorney, Mr. Cummins, had agreed with the District At¬
torney that he would appear to answer the indictment be¬
fore February 1, 1941. (Appellant’s App. 13-14) Extra¬
dition proceedings were held in abeyance pending the ap¬
pellant’s appearance to answer the indictment. Appellant
was arrested on, to-wit, October 22, 1940 in Reno, Nevacja,
on the District indictment, and his affidavit (Appellant’s
App. 12) discloses that his bond of $1,000.00 given in Renjo,
Nevada, was posted as security “for his return to the Dis¬
trict of Columbia on or before February 1, 1941.” Appel¬
lant was taken into custody by the United States Marshal’s
Office on January 16, 1941. (Appellant’s App. 9) He had
returned to the District the latter part of December, 1940.

The Appellant’s presence in the District to answer the
criminal indictment rendered him immune from service pf
process. This Court in the case of Church v. Church, 50
App. D. C. 239; 270 Fed. 361, specifically held that a de¬
fendant in answering a criminal case is immune from ser¬
vice of process when in the District of Columbia. In the
Church case the wife sued the husband and service was hajd
on him as he vras leaving the courthouse after trial of an
indictment charging him with non-support. One of thje

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contentions was that he voluntarily appeared because he
did not insist upon formal extradition proceedings. The
court however held that whether extradited or not he was
required to answer the criminal case and his presence was
involuntary. The court said at page 241:

“By coming voluntarily the defendant removes an
obstacle to the administration of justice and saves the
expense and trouble of extradition. Is it not in the
interest of a sound public policy that this should be
encouraged?

“But did the appellant come voluntarily? He knew
that if he did not appear his attendance in all proba¬
bility would be compelled through extradition proceed¬
ings. Such an appearance can hardly be said to be
voluntary. In a case where the facts were quite simi¬
lar, the court held that the defendant did not come
voluntarily. U. S. v. Bridgman, supra.

“But, whether we view his appearance as voluntary
or involuntary, we think the privilege attached to him,
and that the service should have been quashed.’’

In Prescott v. Prescott , 95 N. J. E. 173, 122 A. 611, the
court was presented with a set of facts practically identi¬
cal with those in the case at bar. Prescott returned to New
Jersey from New York at the request of the New Jersey
Probation Officer in connection with his non-support trial.
While in the state for that purpose, the ne exeat was issued
and he was taken into custody. Motion to quash was filed
and granted. The court, among other things, said:

“The least objection made to the release of this
prisoner is that, in the Michaels on case, the court was
only dealing with the service of summons and capias,
and that therefore it should not extend to process of
ne exeat. In so arguing, counsel loses sight of the
reason for the rule and the breadth of its sweep. No
further argument is required for us to see that the
purpose of the rule is to encourage parties and wit¬
nesses to come voluntarily within a jurisdiction where
they could not be compelled so to do, in the advance¬
ment of the administration of justice. It is, as Mr.
Justice Parker says, a practical rule, intended to se-

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cure the greatest good in the largest number of crises,
and it cannot be denied that fear of arrest under a
writ of ne exeat would be quite as deterring to a phrty
outside of the jurisdiction as the service of a sumihons
of capias upon him.” i

The judge in refusing to quash the writ held that j the
writ could be served legally and was a quasi-criminal pro¬
ceeding and not a civil action. j

Counsel has found no case which holds that a ne efyeat
is a quasi-criminal proceeding, but on the contrary the
court can only issue the writ of ne exeat in an equity pro¬
ceeding, and this therefore makes it a civil proceeding^

Apparently appellee and her counsel both believe t|hat
if he were in the District to answer a criminal indictment
he would be immune from service because we find the fol-
lowing in the complaint requesting the "writ of ne exeat\:

“Complainant is further informed and believes tjiat
if defendant is unsuccessful in defending the said ex¬
tradition proceeding, and is brought to the District,
she would even then be unable to obtain service! of
either process against him in the proceeding because
of the fact that his presence in this jurisdiction would
then be under the compulsion of the criminal prose¬
cution for non-support. ”

The court should have granted the motion to quash tlhe
writ on the ground that the appellant was immune frprn
service.

Appellee’s counsel knew that the appellant’s extraditijon
hearing w T as scheduled to be heard in February 1941, fpr
we also find the following in the complaint requesting issu¬
ance of the writ: j

“On information and belief complainant avers that
the hearing on said extradition proceeding has beSn
postponed until some day during the month of Feb¬
ruary of this year, and that the defendant is at liberty
under bail to return to the state of Nevada for the
said extradition proceeding.”

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Appellant’s affidavit (Appellant’s App. 15) shows that
he had posted a $1,000.00 bond in the District Court for
the District of Columbia in answer to the non-support in¬
dictment.

A decision of this Court which held a party is immune
from service of civil process while in the jurisdiction for
the purpose of being a witness or a party to a criminal
proceeding, is Hollidge v. Crumpler, et ciL, 63 App. D. C.
330; 72 Fed. (2d) 381.

This Court has even gone so far as to hold that a party
is entitled to a privilege of immunity from service of proc¬
ess 'while in voluntary attendance upon any judicial hear¬
ing wherein his interests are involved. Engle v. Manches¬
ter, 46 App. D. C. 220. In the Engle case the Court said:

“There has been a division of opinion in the state
courts upon whether the privilege is limited to actual
arrest upon civil process without extending to exemp¬
tion from ordinary civil process, but the tendency has
been constantly to enlarge the right of privilege so as
to afford full protection to suitors and witnesses from
all forms of process of a civil character during their
attendance before any judicial tribunal, and for a rea¬
sonable time in going and returning. This doctrine
seems to be established bv the weight of authoritv.”

POINT II.

The Court Erred in Not Quashing the Writ on the Merits.

Appellee’s complaint praying for the issuance of the writ
contains onlv two statements which in anv wise tend to
show any authority for the issuance of the writ. They are:

(1) “That according to this complainant’s informa¬
tion and belief since July 1939, the defendant herein
has remained away from the jurisdiction of this court
for the sole purpose of evading process of this pro¬
ceeding and to avoid the payment of alimony awarded
herein for the maintenance of this petitioner and their
child, except for short visits to bis relatives in the
District made by the defendant over weekends when
process was not obtainable.” (Appellant’s App. 4)

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and

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(2) “Complainant herein is informed and believes
that the defendant is now in the District visiting his
relatives and that he is about to return to the state of
Nevada and to there resist efforts to have him re¬
turned to the District in said proceeding, all for the
sole purpose of avoiding his duty to contribute to!the
support of this complainant and his minor child, and
to avoid compliance with the decree of this Honor¬
able Court, in the above entitled proceeding.” (Ap¬
pellant’s App. 5)

The order for temporary alimony and maintenance en¬
tered by the court in June 1935 provided for the payment
of $25.00 per week to appellee. (Appellant’s App. 2) Tjhis
was paid. In February 1937 the final decree provided for
the sum of $100.00 per month. (Appellant’s App. 3) Tjhis
was paid until January 15, 1939—almost two years—when
it appears without contradiction that appellant lost !his
position through no fault of his own. (Appellant’s App.
20) It should also be remembered that from February! of
1938 until the summer of 1939 appellant was in the sthte
of Virginia. He complied with the order of the court for
a period of approximately one year while he was out of
the jurisdiction. (Appellant’s App. 20) Of course it wofild
have been better for appellant to have immediately applijed
for a modification of the final decree upon losing his posi¬
tion. Why it was not done is not disclosed by the record]
Appellant’s answer to the complaint for the writ (Ap¬
pellant’s App. 18) states that he did return to the District
on many occasions and that his visits were for many days
and were not so timed to avoid service of process. ljle
admitted that he was not in the District from August 19^0
until his return in December 1940. It further appears thiat
he received no salary from January 1939 until he secured
employment in the District in January 1941, except fbr
odd jobs and that his total earnings from January 19$9
to and including December 1940 approximated $275.0(0.
The answer further shows that he specifically returned to

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the District because he had been advised by his attorney
that he would be extradited if he did not. (Appellant’s
App. 20) It specifically denied that he ever remained away
from the jurisdiction of the District court for the purpose
of avoiding compliance with the decree or of avoiding proc¬
ess. (Appellant’s App. 20)

The record further shows that he secured employment at
$20.00 per week subsequent to his return to the District
and offered to pay to the support of his child the sum of
$7.50 per week, which the appellee refused. (Appellant’s
App. 14-15) She is employed and receives $130.00 per
month.

A party applying for ne exeat has the burden of satisfy¬
ing the court that the defendant intends to depart the state
in order to avoid the performance of the process of court.
The Supreme Court of Rhode Island in the case of Jastram
v. McAuslam, 31 R. I. 274; 76 A. 648, considered the neces¬
sary allegations before a writ of ne exeat should issue, and
held that the application for the writ did not state sufficient
facts. The court used this language:

“The greatest extent to which any of the authorities
appear to go in granting a writ of ne exeat is that it
should be issued only, first, upon an affidavit of facts,
sworn to from the knowledge of the affiant, and not
upon his information, from which facts the court can
deduct the intention to leave the state to avoid the
court’s decree, or, second, upon facts sworn to upon
information, accompanied by the positive allegation of
the petitioner, based on the information, that there is
an intention to leave the state to avoid the decree of
the court.”

The Supreme Court of the United States in the case of
Ginsberg & Sons v. Popkin, 285 U. S. 204, discusses the
power of the court to allow writs of ne exeat . The Gins¬
berg case was not a divorce case, but the issuance of the
writ has never been limited solely to divorce actions. The
court at pages 208-9 said:

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“ Assuming that under section 2 bankruptcy courts
are empowered to allow writs of ne exeat, that graiited
in this case wras without warrant, for conditions made
essential by the common law and as well by the judi¬
cial Code were lacking.

* 4 Speaking for the Supreme Court of Wisconsin in
Davidson v. Rosenberg, 130 Wise. 22; 109 N. W. ^25,
Mr. Justice Winslow described the writ of ne exeat as
follow’s: ‘At common law it was simply a writ to! ob¬
tain equitable bail. It was issued by a court of equity
on application of the complainant against the defen¬
dant when it appeared that there was a debt positively
due, certain in amount or capable of being made per¬
tain, on an equitable demand not suable at law (expept
in cases of account and possibly some other cases of
concurrent jurisdiction), and that defendant was about
to leave the jurisdiction, having conveyed away j his
property, or under other circumstances which wo uld
render any decree ineffectual. Dean v. Smith, 23 Wise.
483. Rhodes v. Cousins, 6 Rand. 188, 191,18 Am. Bee.
715; Gibert v. Colt, 1 Hopk. Ch. 496, 14 Am. Bee. 557,
and note.’

“The writ is a restraint upon the common righij; of
movement from place to place within the United States
and upon emigration. It has been abolished in some
states and its use is largely regulated and restricted
by statute in others. And section 261 of the Judicial
Code strictly governs the granting of the writ in Fed¬
eral courts.”

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The Ginsberg Case states it must appear, among otjbier
things, “that the defendant W’as about to leave the jurisdic¬
tion, have conveyed away his property, or under other cir¬
cumstances wdiich would render any decree ineffectual”, j It
is very clear that the appellee in her complaint sets forth! no
facts but relies on the vague generality “information dud
belief”. If the appellant was about to leave the Bistrict of
Columbia, some one should be able to swear to that fact.
If he had stated to some one that he was going to av^id
service of process and not be available to comply with the
decree of Court, some one should be able to swear to that
fact. If he had transferred any property, some record

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would, of necessity, show that fact. It is no wonder that
most States have outlawed the Writ of Ne Exeat, because
of the great abuse and injustice which it is capable of fos¬
tering.

Attention is particularly called to 28 U. S. C. A., Section
376 (Judicial Code, Sec. 261, 36 Stat. 1162), which permits
Writs of Ne Exeat to be issued by any District Judge, but
states specifically “no Writ of Ne Exeat shall be granted
unless a suit in equity is commenced, and satisfactory proof
is made to the Court or Judge granting the same that the
defendant designs quickly to depart from the United
States.’’

Many of the States have abolished the Writ of Ne Exeat
for various reasons which have appealed to the legislatures.
Appellant was not charged with any criminal offense and yet
if his relatives had not come to his assistance he would lan¬
guish in jail in default of the One Thousand Dollar
($1,000.00) Bond. Even where a defendant fails to comply
with the order of Court and contempt proceedings are in¬
stituted against him and the Court finds that he is in
contempt, after serving a short period of time, usually thirty
(30) days, in jail, he is free to proceed about his business.
Where the Writ of Ne Exeat, as in this case, prohibits the
appellant from going beyond the jurisdiction of the District
of Columbia, it is really worse than being charged with the
criminal offense or a wilful refusal to comply with the order
of Court.

In Shainwald v. Lewis , 46 Fed. 839, the Court holds that
a mere allegation upon information and belief that the de¬
fendant will and intends to leave and depart from a State,
which averment is denied by answer, is insufficient.

In the case of McPartland v. McPartland, 261 N. Y. Supp.
847,146 Misc. 672, the Court quashed the Writ of Ne Exeat
which had theretofore been issued. The wife had contended
in this case that the husband intended in leaving the juris¬
diction; this he denied. The Court said: “The deprivation
of one’s liberty is a matter of serious moment, and, when the
determination of such question must be made upon a sharply
disputed issue of fact, I think every reasonable doubt must

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be resolved in favor of the one whom it is sought to least
into jail, even upon a civil process”.

A careful examination of appellee’s Complaint request¬
ing the issuance of the Writ of Ne Exeat shows that prac¬
tically no facts are set forth which would be sufficient for
the Court to conclude that appellant was about to leavq the
jurisdiction or had conveyed or was about to convey a|way
his property or any other circumstances which would Ren¬
der ineffectual the decree of the Court. Her Complaint is
mostly conclusions based upon “information and belief”’
The child of the parties hereto is a young one and! ap¬
pellee apparently proposes to continue the writ against the
appellant until the child reaches her majority and until jshe,
if ever, remarries. It would appear if this decision is | not
reversed that all she has to do is to advise the Court i^pon
information and belief that the appellant is about to ldave
the jurisdiction in order to avoid the order of the Court. A
statement of the hardship that the issuance of the Writ! en¬
tails clearly shows that the Court should require the strong¬
est type of allegations supported by facts which unmisiak-
inglv show that the appellant is about to render ineffectual
the jurisdiction of the Court. i

The record shows that appellant for over three and 0ne-
half (. 31 / 2 ) years paid alimony and maintenance at the ijate
of One Hundred Dollars ($100.00) per month. During (the
last year of this time he was out of the jurisdiction. After
he lost his employment the record shows that he was j in¬
dicted for non-support; he was sent to jail for contemipt;
and the appellee now proposes to restrain him perpetually
from leaving the District of Columbia.

The order of the District Court refusing to quash the Ser¬
vice and continuing the Writ of Ne Exeat in force and effect
should be reversed and the Court directed to quash the Writ.

Respectfully submitted,

Robert E. Lynch,

Attorney for Appellant,
821 15th Street, N. W.,
Washington, D. C. j

APPENDIX

INDEX TO APPENDIX TO BRIEF FOR APPELLANT.

Subject Index.

Page

Memorandum, Bill of Complaint for Limited Divorce 1
Memorandum, Motion for Alimony Pendente Lite with

Affidavit and Notice ..'. 1

Memorandum, Answer of Charles J. Jacobsen, Defen¬
dant . 1

Order for Alimony and Custody of Minor Child Pen¬
dente Lite. 2

Decree for Limited Divorce. 2

Complaint for Rule in Contempt and for Writ of Ne

Exeat. 3

Order to Issue Writ of Ne Exeat. 6

Plaintiff’s Affidavit . 7

Marshal’s Return to Writ of Ne Exeat Issued January

13, 1941. 9

Motion to Discharge Writ of Ne Exeat, and to Dis¬
charge Rule to Show Cause in Contempt, and to
Dismiss Complaint for Rule in Contempt and Writ
of Ne Exeat, for the Want of Jurisdiction of This

Court Over the Person and Subject Matter. 10

Affidavit in Support of Motion. 12

Defendant’s Affidavit in Reply to Plaintiff’s Affidavit 13
Order Overruling Defendant’s Motion to Discharge

Writ of Ne Exeat, Etc. 17

Motion for Rehearing and Reconsideration of the De¬
fendant’s Motion to Discharge Writ of Ne Exeat
for Want of Jurisdiction and Alternative Motion
to Discharge Writ of Ne Exeat on the Merits .... 17

Answer to Complaint for Rule in Contempt and Rule

to Show Cause Issued Thereon. 18

Affidavit of C. F. Jacobsen. 23

Order Overruling Defendant’s Motion for Rehearing
and Reconsideration of Defendant’s Motion to
Quash Service of Writ of Ne Exeat and to Dis¬
charge Writ of Ne Exeat. 23

Notice of Appeal. 24

Assignment of Errors or Points on Which Appellant
Expects to Rely Upon Appeal .... f ,.24

IN THE

United States Court of Appeals

for the District of Columbia

No. 7845.

CHARLES J. JACOBSEN, Appellant ,

v.

NORVELLE H. JACOBSEN.

Appeal from the District Court of the United States
for the District of Columbia.

APPENDIX TO BRIEF FOR APPELLANT.

PLEADINGS. DOCKET ENTRIES AND OTHER PAPERS
DESIGNATED BY APPELLANT.

44

Memoranda

June 19—1935

Bill of Complaint for Limited Divorce—filed.

Motion for Alimony Pendente Lite with Affidavit bnd
Notice—filed.

June 25—1935

Answer of Charles J. Jacobsen, Defendant—filed.

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45 Order for Alimony and Custody of Minor

Child Pendente Lite.

Upon consideration of the Motion for Alimony pendite
lite, the affidavit attached thereto, filed herein with plain¬
tiff’s original Bill of Complaint, and the agreement of the
Plaintiff and defendant through their counsel to the pass¬
ing of this Order, it is by the Court this 25th day of June,
1935,

ORDERED, That pendente lite custody of the infant
daughter of the plaintiff and defendant, Karla Jacobsen,
be, and the same is hereby awarded to the plaintiff, Nor-
velle H. Jacobsen with the privilege to the defendant to
visit and have the custody of said infant child for any one
day at various times without interference or molestation
to the defendant.

It is further ORDERED That the defendant pay to the
plaintiff through her counsel of record, alimony pendente
lite for the maintenance and support of the plaintiff and
their minor child, the sum of Twenty-five Dollars forthwith,
and a like sum on Monday of each week after the date
hereof, until further order of the Court.

DANIEL W. O’DONOGHUE,
Justice.

We consent:

CHARLES L. NORRIS,
Attorney for Plaintiff.
LYON & LYON,

Attorneys for Defendant.

#.# • # m * * * * *

2 Decree for Limited Divorce.

This cause having come on for hearing at this term of
Court and the pleadings and proofs having been duly con¬
sidered, it is by the Court this 25th day of February, 1937,
ADJUDGED, ORDERED and DECREED, that the
plaintiff, Norvelle H. Jacobsen, be and she hereby is

I

3 !

i

J

awarded a divorce A Mensa Et Thoro from tlie defendant
upon the ground of cruelty.

That the permanent custody of the infant daughter of
the plaintiff and defendant, Carla Jacobsen, be and the same
is hereby awarded to the plaintiff, Norvelle H. Jacobsen,
with the privilege to the defendant to visit and have tjie cus¬
tody of said infant child for any one day at various, times
without interference to the defendant.

That the defendant, Charles J. Jacobsen, be, and h^ here¬
by is, directed to pay to the plaintiff permanent alimony
for the maintenance and support of the plaintiff and their
minor child, the sum of Fifty Dollars on the first and Fity
Dollars on the 15th of each month beginning on the fijrst of
March, 1937, and the said defendant is hereby directed to
pay to the plaintiff the taxable costs of this suit apd to
Charles L. Norris as counsel for the plaintiff in thi^ pro¬
ceeding the sum of One Hundred Dollars. j

DANIEL W. ODONOGHUE.

Justice. |

# # * * * • # • * •

I

3 Complaint for Rule in Contempt and for Writ j

of Ne Exeat.

' i

Your complainant, Norvelle H. Jacobsen, respectfully
represents: j

1. That a final decree of limited divorce upon the grounds
of cruelty was awarded unto her by this Honorable Court
in the above-entitled proceeding on the 25th day of Feb¬
ruary, 1937, and by said decree of limited divorce the de¬
fendant was required to pay permanent alimony for the
Maintenance and support of the plaintiff and her minor
child, the sum of Fifty ($50.00) Dollars on the 1st day and
Fifty ($50.00) Dollars on the 15th day of each monthj be¬
ginning on the 1st day of March, 1937 and the plahjtiff
w’as awarded custody of said minor child of the parties.

2. That the defendant has failed and refused to abide' by
the said decree of divorce in that he has paid no alimony

|

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i

4

accruing under the provisions of said decree since the in¬
stallment which became due January 1, 1939, which install¬
ment the defendant paid April 4, 1939.

3. Accordingly, the defendant is in contempt of the terms
of said decree in the full sum of Two Thousand four hun¬
dred ($2,400.00) Dollars for failure to pay the installments
due Januay 15, 1939 to January 1, 1941.

4. That on or about February 2, 1938, the defendant
moved to Norfolk, Virginia, where he claims under affida¬
vits heretofore filed in Civil Action No. 3743, in this Hon¬
orable Court during August and September of 1939 to
have established a residence in the State of Virginia.
That on July 13,1939, the defendant filed a suit for divorce
against the plaintiff herein in the Circuit Court of the City
of Norfolk, Virginia, alleging as grounds therefor the mat¬
ters which had been determined in this court in Equity
proceeding No. 58909, and thereafter in November of 1930
the said Virginia Court dismissed the suit for divorce of
the said Charles J. Jacobsen on the grounds that the mat¬
ters complained of were Res Adjudicata by the de-

4 cree of this Honorable Court. That thereafter on
the 19th day of September, 1940, the said Charles J.
Jacobsen filed a suit for absolute divorce in the city of
Reno, state of Nevada, against the complainant herein, al¬
leging as grounds thereof the same matters which had pre¬
viously been adjudicated between the parties in this Hon¬
orable Court. In said Reno divorce proceeding the said
Charles J. Jacobsen claimed therein to have established
a legal residence in the State of Nevada. This complain¬
ant being then without funds was unable to contest said
Nevada divorce proceeding and thereafter a decree of di¬
vorce was entered in said proceeding by defendant on Octo¬
ber 2,1940, granting unto the said Charles J. Jacobsen a de¬
cree of divorce against the defendant named therein, who is
the petitioner herein.

That according to this complainant’s information and be¬
lief since July, 1939, the defendant herein has remained
away from the jurisdiction of this court for the sole pur-

5

pose of evading process in this proceeding and to avoid
the payment of alimony awarded herein for the mainte¬
nance of this petitioner and their minor child, except ifor
short visits to his relatives in the District of Columbia
made by the defendant over week ends when process was
not obtainable. That during such periods when the de¬
fendant would visit his relatives in the District of Colukn-
bia this complainant has caused repeated efforts to be made
by the United States Marshal’s Office to serve process on
the defendant, all of which have failed due to the defen¬
dant’s avoidance thereof and the secretiveness surround¬
ing his visits until after he had left the District of Columbia.

This complainant on information and belief avers tfyat
the Grand Jury in the District of Columbia indicted the
defendant for non-support and that he was arrested in the
state of Nevada in extradition proceedings instituted to
effect his return and trial in the District of Columbia for
non-support. On information and belief the complainant
avers that the hearing on said extradition proceeding has
been postponed until some day during the month of Feb¬
ruary of this year, and that the defendant is at liberty
under bail to return to the state of Nevada for said extra¬
dition proceeding.

Complainant herein is informed and believes that the
defendant is now in the District of Columbia visiting jhis
relatives and that he is about to return to the state of Ne¬
vada and to there resist efforts to have him retikrn
5 to the District of Columbia in said proceeding jail
for the sole purpose of avoiding his duty to cpn-
tribute to the support of this complainant and his mi^ior
child, and to avoid compliance with the decree of this hon¬
orable court, in the above entitled proceeding. Complain¬
ant is further informed and believes that if defendant! is
unsuccessful in defending the said extradition proceeding
and is brought to the District of Columbia, she would eVen
then be unable to obtain service of valid process against
him in this proceeding because of the fact that his pifes-

6

ence in this jurisdicton would then be under the compulsion
of the criminal prosecution for non-support.

5. By reason of the premises, complainant avers that if
the defendant is permitted to leave the jurisdiction of this
court that he will thereby successfully avoid compliance
with the decree of this court and thereby deprive her of
all practical means of forcing the payment due her under
the decree of this court.

WHEREFORE, plaintiff respectfully demands:

1. That a Rule be issued by this Court directing the de¬
fendant, Charles J. Jacobsen, to appear before it and show
cause, if any he has, why he should not be adjudged in con¬
tempt of court for his failure to comply with its order for
payment to the petitioner.

2. That the defendant be held in contempt of court.

3. That the Clerk of this Court be directed to issue the
Writ of Ne Exeat to prevent the said Charles J. Jacobsen,
from leaving this jurisdiction of this Court pending a de¬
termination hereof.

3. For such other and further relief as to the court may
seem just and proper.

(S) NORVELLE H. JACOBSEN,

3600 N. H. Ave. N. W.

Wash. D. C.

(S) CHARLES L. NORRIS,

(S) JOSEPH I. CAVANAUGH,

2135 Pennsylvania Ave. N. W.,

Washington, D. C.,

Attorneys for complainant.

• *#•#■##***

52 Order to Issue Writ of Ne Exeat

Upon consideration of the petition of Norvelle H. Jacob¬
sen filed herein on the 13th day of January, 1941, it is by the
court this 13th day of January, 1941,

Ordered, that the clerk of the court shall forthwith issue
unto the defendant, Charles J. Jacobsen, the writ of pNTe
Exeat and that the penal sum to be fixed in the bond to be
required of the defendant shall in the sum of $1000.00.

• • • • # * # * • | •

8 Plaintiff’s Affidavit

District of Columbia, ss :

Norvelle H. Jacobsen, being first duly sworn, on oath de¬
poses and says that she is the plaintiff herein and makes
this affidavit in support of the writ of ne exeat and rulej to
show’ cause herein:

That the plaintiff and her child have been domiciledj in
the District of Columbia w’ithout interruption since the
marriage of the plaintiff and defendant; but some time prior
to July 12,1939, the defendant removed to the State of Vir¬
ginia for the purpose of seeking a decree of divorce in that
state; that he w*as unsuccessful and shortly after the final
determination of the Virginia suit, defendant moved on to
the State of Nevada and, after the required six weeks’ pres¬
ence there, instituted the divorce action referred to in de¬
fendant’s affidavit and motion herein; that sometime be-
tween October 22d, 1940, and Christmas, 1940, the defendant
reappeared in the District of Columbia and resumed resi¬
dence at his father’s home and obtained employment with
the Barker Lumber Company, which employment, affiant is
informed and believes, defendant still retains.

That plaintiff is informed by the United States District
Attorney for the District of Columbia, and therefore be¬
lieves, that the defendant’s attorney and father did confer
with said District Attorney in October, 1940, and did agree,
as substantially set forth in defendant’s motion and affi¬
davit, that if the criminal action would be deferred uptil
February 1,1941, he, the defendant, would in the meantime
return to the District of Columbia and obtain permanent
employment in said District and contribute to the support
of the plaintiff and their child.

That the defendant is employed by one of the largest lum¬
ber companies in the District of Columbia, of whjich

8

9 corporation, the defendant’s father is vice-president
and a principal stockholder, and in such position can
insure the defendant permanent employment and fix his in¬
come.

Further, the defendant’s father is also president of one
of the foremost banks in the District of Columbia, and plain¬
tiff is informed, and therefore believes, that the defendant’s
father supported said defendant during the latter’s sojourns
in the states of Virginia and Nevada, and paid the expenses
of the litigations in those jurisdictions;

Further, that upon the defendant’s apprehension in the
State of Nevada, the defendant’s father caused a certified
check in the amount of One Thousand Dollars ($1,000.00)
to be deposited with the United States Attorney in lieu of
bond; that upon the defendant’s apprehension under the
writ of lie exeat herein on January 16, 1941, defendant’s
father deposited the further sum of One Thousand Dollars
($1,000.00) in cash, with the United States Marshal for the
District of Columbia, in lieu of bond; that, on January 17,
1941, bail bond in the additional sum of One Thousand Dol¬
lars ($1,000.00) was furnished in the criminal action re¬
ferred to in the defendant’s affidavit and motion herein.

That defendant is now residing with his father in the lat¬
ter’s fashionable and expensive residence at 1619 Decatur
Street, N. W., in the District of Columbia, and living accord¬
ing to his father’s station in life and position in the com¬
munity, but has made none of the decree semi-monthly ali¬
mony payments that have fallen due since his return from
Nevada.

That, since the filing of plaintiff’s complaint for rule here¬
in, a further alimony payment of Fifty Dollars ($50.00) has
become due under the final decree of this Court, but has not
been paid.

That the plaintiff was not served with process in the di¬
vorce proceedings set forth by the defendant within the ter¬
ritorial jurisdiction of the Court of the State of Nevada, but
was handed a copy of the said court’s process and of the

9

defendant’s complaint while she was in the District of Co¬
lumbia.

NORVELLE H. JACOBSEN

10 Subscribed and sworn to before me this 30th day
of January, 1941.

L. M. FOX j

(Notarial Seal) Notary Public, D. C.

I hereby certify that I have served a copy of the abbve
Affidavit, together with Plaintiff’s Points and Authorities,
upon Elmer E. Cummins, Esquire, attorney of record for
the defendant, by mailing same, postage prepaid, to him| at
his office address, Earle Building, Washington, this 2]9th
day of January, 1941.

JOSEPH I. CAVANAUGH
Attorney for Plaintiff.

T. ALAN GOLDSBOROUGH,

Justice .

* # * # # # * * # j *

53 Marshal’s Return to Writ of Ne Exeat Issued

January 13,1941

The within writ executed, by the posting of a bond | of
$1,000 cash, for the defendant, Charles J. Jacobsen, Per¬
sonally, by Stanley D. Willis, January 16, 1941. JohnjB.
Colpoys U. S. Marshal in and for the D. of C. By W.jB.
Robinson Jr. Deputy U. S. Marshal.

March 10, 1941. Cash Security of $1000.00 returned to
Stanley D Willis, and substituted by a Bond of $1000.00 by
the Fidelity & Deposit Company of Maryland JOHN B.
COLPOYS U. S. Marshal in and for the D. of C. By
M Kearney—Chief Deputy U. S. Marshal K—

10

54 Motion to Dicharge Writ of Ne Exeat, and to Dis¬

charge Rule to Show Cause in Contempt, and to
Dismiss Complaint for Rule in Contempt and Writ
of Ne Exeat, for the Want of Jurisdiction of This
Court Over the Person and Subject Matter.

Comes now Charles J. Jacobsen, defendant in the above
entitled cause, by and through his attorney, Elmer E. Cum¬
mins, appearing specially for the purpose of this motion
and none other, requesting the Court to discharge the writ
of Ne Exeat, and to discharge the rule to show cause in con¬
tempt, and to dismiss complaint for rule in contempt and
writ of Ne Exeat, filed by the plaintiff herein, for the want
of jurisdiction of this Court over the person and subject
matter, and for reasons states as follows:

1. That the service of the rule to show cause in contempt,
■writ of Ne Exeat, and complaint for rule in contempt versus
the defendant was had at a time when said defendant was
involuntarily appearing in the District of Columbia, as a re¬
sult of an indictment pending against him for nonsupport of
a minor child, in destitute and necessitous circumstances,
same being numbered 66597, wherein the plaintiff in the
above entitled cause is named as the complainant; that sev¬
eral months prior to the issuance of the writ of Ne Exeat in
the above entitled cause, the defendant was required to de¬
posit a bond in the sum of One Thousand Dollars ($1,000.00),
as security for his return to the District of Columbia on or
before February 1, 1941, and remain therein until the final
deposition of the aforesaid indictment, which is now

55 pending against him in the Criminal Branch of this
Court; that the defendant’s attorney, Elmer E. Cum¬
mins, entered into an agreement with Judge Edward M.
Curran, United States District Attorney for the District of
Columbia, during the month of October, 1940, at which time
it was mutually agreed between the said District Attorney
and Elmer E. Cummins that the aforesaid indictment would
be permitted to lie dormant and inactive until February 1,
1941, and that no action would be taken before the afore-

/

11

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said date, provided the defendant obtained permanent '.em¬
ployment and agreed to pay a reasonable portion of i his
weekly earnings to the plaintiff for the maintenance of j the
infant child of the parties hereto; that this defendant,
through his counsel has complied with this agreement, jand
has offered to pay over and unto the plaintiff herein more

than one-third of his weeklv salary for the maintenance and
• * "
support of said infant child.

2. That the Court does not have jurisdiction over the per¬

son of the defendant and the subject matter herein, by Rea¬
son of the fact that the defendant did on, to wit, the 22nd
day of October, 1940, obtain an absolute divorce from j;he
plaintiff herein in the District Court of the Second Judicial
District of the State of Nevada, in and for the County! of
Washoe; that it appears from the records in the aforesjaid
Court, and also on the records of the United States Mar¬
shals’ Office for the District of Columbia, that the plaintiff,
Norvelle H. Jacobsen, was personally served with process of
the said divorce action. No. 65,685, Dept. No. 2, whertin
Charles J. Jacobsen is named as plaintiff, and Norvelle 'H.
Jacobsen is named as defendant; that although personally
served with a true copy of the aforesaid divorce proceed¬
ings, the said defendant failed to file an answer, demurrer,
motion, or other defense or appearance whatsoever, but jin
lieu thereof, allowed the said divorce to be entered by de¬
fault. |

3. And for such other and further reasons as may be pre¬
sented to the Court at the hearing of this motion.

ELMER E. CUMMINS j
Attorney for Defendant ,
Appearing Specially for the
purpose of this Motion and
none other.

Earle Building,
Washington, D. C.

i

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12

56 Affidavit in Support of Motion
District of Columbia, ss :

Charles J. Jacobsen, being first duly sworn, on oath de¬
poses and says, that he is the defendant in the above en¬
titled cause, wherein Norvelle H. Jacobsen is named as
plaintiff; that on or about October 22, 1940 he was arrested
by the United States Marshal in the State of Nevada, as a
result of a certain warrant which was caused to be filed by
the plaintiff herein in the District of Columbia a few days
prior thereto, in which he was indicted by a grand jury in
the District Court of the United States for the District of
Columbia, for nonsupport of a minor child; that on the
aforesaid date he caused to be posted in the said State of
Nevada a bond in the sum of One Thousand Dollars
($1,000.00) as security for his return to the District of Co¬
lumbia on or before February 1, 1941, and remain therein
until final disposition of said indictment in said Court; that
on, to wit, January 16, 1941, at which time he was involun¬
tarily remaining in the District of Columbia, your affiant
was arrested by a Deputy United States Marshal in and for
the District of Columbia, as a result of a writ of Ne Exeat,
rule to show cause in contempt, and complaint for rule in
contempt and writ of Ne Exeat, which were caused to be
filed by the plaintiff herein; that he was again required to
post a bond in the sum of One Thousand Dollars ($1,000.00),
as security for his presence in the District of Columbia at
all times. That on, to,wit, October 22, 1940, he obtained an
absolute divorce from the plaintiff herein, in the District
Court of the Second Judicial District of the State of Nevada,
in and for the County of Washoe; that the United States
Marshals’ records of the District Court of the United

57 States for the District of Columbia indicate that the
plaintiff herein, Norvelle H. Jacobsen, was personally

served with a copy of the said divorce proceedings; that the
records of the aforesaid Nevada Court indicate that the
plaintiff, Norvelle II. Jacobsen, failed to appear and de¬
fend said cause of action, and further failed to file any an-

13

swer, demurrer, motion, or other defense; that the afore¬
said Nevada Court had full jurisdiction over the plaintiff
and the defendant.

Further, affiant states that through his counsel, he has
agreed, in keeping with a certain agreement entered into! be¬
tween Judge Edward M. Curran, United States District jAt-
torney for the District of Columbia, and Elmer E. Cummins,
to pay a weekly sum in excess of one-third of his weekly
earnings to the plaintiff herein, as a result of the aforesaid
indictment for nonsupport which is now pending against
him.

CHARLES J. JACOBSEN j

Subscribed and sworn to before me this 22nd day of Jjan-
uary, 1941.

CHARLES H. IRVING, 3d, i

Notary Public , D\ C.
11 Defendant’s Affidavit in Reply to Plaintiff’s Affidavit

District of Columbia, ss :

Charles J. Jacobsen, being first duly sworn, on oath (de¬
poses and says that he is the defendant herein, and makes
this affidavit in reply to the plaintiff’s affidavit filed herein,
and further in support of his motion to discharge the wfrit
of Ne Exeat, heretofore filed herein.

That on or about the 16th day of December, 1940 he in¬
voluntarily returned to the District of Columbia as a resjult
of an indictment then pending against him in this Coiirt,
wherein the plaintiff herein was named as complainant; that
it was mandatory for him to return to this jurisdiction, bv
reason of a One Thousand Dollar ($1,000.00) cash bdnd
posted in the District Court of the Second Judicial District
of the State of Nevada at a time when affiant was incarcer¬
ated in jail in said State, as a result of being arrested by
Federal Authorities when they executed the aforesaid wAr-
rant for non-support of a minor child; that the aforesaid
bond was a guarantee and security for his return to tljiis
city on or before February 1, 1941, in accordance with) a

14

certain agreement had between his counsel and Judge Ed¬
ward M. Curran, United States District Attorney for the
District of Columbia, and that by reason of said agreement
with the said District Attorney, it was mandatory for your
affiant to appear in this jurisdiction on or before February
1, 1941 and continue to remain therein until the final dis¬
position of the aforesaid indictment; that when your affiant
returned to this city, as aforesaid, he was unemployed
12 and it became necessary for him to depend on his
friends and relatives for his maintenance and sup¬
port, and that while remaining in this city, until such time
as he could plead to the aforesaid indictment, he obtained
permanent employment on January 15, 1941 at the Barker
Lumber Company, at a weekly salary of Twenty Dollars
($20.00); that the position at the Barker Lumber Company
is the first permanent employment your affiant has been suc¬
cessful in obtaining since the Spring of the year 1939; that
affiant will not be able to pursue his daily occupation at the
said Barker Lumber Company if the writ of Ne Exeat re¬
mains in full force and effect, as his employment with said
company requires him to make contacts with contractors
and builders in the suburbs of the District of Columbia, such
as Silver Spring, Maryland, Alexandria, Virginia, Falls
Church, Virginia, and numerous other small towns just out¬
side the District of Columbia, in order to sell the products of
said company; that in the event he is restricted for an in¬
definite period of time from pursuing his duties in this re¬
spect, he will be discharged.

Affiant further states that on, to wit, January 17,1941, he
offered to maintain and support the infant child of the par¬
ties hereto, by the payment of a sum in excess of one-third
of his weekly salary, and that this offer was made to the Dis¬
trict Attornev of the United States for the District of Co-
lumbia, as a result of the aforesaid indictment for non-sup¬
port; that upon information and belief, your affiant states
that the aforesaid District Attorney considered said sum
fair and reasonable and conveyed this offer to the plaintiff’s
counsel, at which time the said District Attorney informed

15

plaintiff’s counsel, in substance, that in the event the plain¬
tiff did not agree to the acceptance of said offer tendered! by
the defendant, he would not prosecute the defendant on ithe
non-support charge, as he considered the said offer fair gnd
reasonable, taking into consideration the defendant’s saliry
and his first permanent position since 1939. Affiant further
states, upon information and belief, that to the date of the
making of this affidavit, the plaintiff has not agreed to Ac¬
cept said sum, and, therefore, affiant assumes that the wfit
of Ne Exeat and rule to show cause in contempt were
13 filed for the purpose of persecuting your affiant j in
lieu of prosecuting him, as the infant child of tjhe
parties hereto is in daily attendance at the fashionable
Countryside School, and the plaintiff herein now, and hjas
been employed by the Potomac Electric Power Company iat
a salary of One Thousand Four Hundred and Forty Dollars
($1,440.00) a year. To further substantiate the statement
as to the persecution of your affiant, he states that at tjie
present time, although he is permanently employed, His
relatives have been required by reason of his past uneijn-
plovment to post the sum of One Thousand Dollajrs
($1,000.00) as a cash bond in the District Court of tl(ie
Second Judicial District of the State of Nevada, a One
Thousand Dollar ($1,000.00) bond in this Court as a resujlt
of the non-support indictment, and a One Thousand Dollar
($1,000.00) cash bond as a result of the writ of Ne Exe^t,
which was issued at a time when the plaintiff was advisejd
that your affiant was permanently employed at the Barker
Lumber Company; that all of the said bonds, which amouijt
to the sum of Three Thousand Dollars ($3,000.00) are stifl
in full force and effect at the time of the signing of thijs
affidavit.

Further answering, your affiant states that he is now pei|-
manently employed by the aforesaid company, and that ijt
is his intention and desire to remain in the District of Co¬
lumbia and pursue his daily occupation, as this is the first
permanent employment your affiant has been successful iiji
obtaining since the month of April, 1939.

16

Your affiant admits that another payment in the sum of
Fifty Dollars ($50.00) has become due under the final decree
of this Court, but affiant states that when the said order was
signed, he was treasurer of the Thomason Company, Inc., a
corporation, and was receiving a monthly salary in the sum
of Two Hundred Sixty Dollars ($260.00), and as a result of
said salary, he consented to the entry of said final decree;
that during the month of April, 1939 he was discharged and
before being discharged your affiant did not receive his
salary for three months prior thereto; that your affiant
did consistently comply with said order by paying to
the plaintiff the sum of One Hundred Dollars ($100.00) a
month until January 15, 1939, this date being the
14 last date on which he received his salary at the rate
of Two Hundred Sixty Dollars ($260.00) a month;
affiant further states that his failure to comply with the said
order of this Court, dated February 25, 1937, has not been
wilful or contemptuous, but on the contrary he states that
he has been unemployed and unable to support himself since
January 15, 1939 until January 15, 1941, at which time he
obtained permanent employment, as aforesaid.

CHARLES J. JACOBSEN

Subscribed and sworn to before me this 4th day of Feb¬
ruary, 1941.

DOUGLAS A. CLARK

(Notarial Seal) Notary Public, D. C.

ELMER E. CUMMINS

Attorney for Defendant
Earle Building
Washington, D. C.

I hereby certify that on this 4 day of February, 1941, I
mailed, postage prepaid, a true copy of the foregoing affi¬
davit of the defendant, to Joseph I. Cavanaugh, one of the
attorneys for the plaintiff, at 2135 Pennsylvania Avenue,
N. W., Washington, D. C.

ELMER E. CUMMINS
Attorney for Defendant .

17

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58 Order Overruling Defendants Motion to

Discharge Writ of Ne Exeat, Etc. j

Upon consideration of the defendant’s motion to dis¬
charge writ of ne exeat, to discharge rule to show cause j in
contempt, and to dismiss complaint for rule to show caijse
in contempt for want of jurisdiction over defendant’s per¬
son and subject matter, the same having come on for oral
argument by counsel, it is by the Court this 20th day iof
February, 1941, |

Adjudged, Ordered and Decreed That the defendant’s
motion to discharge writ of ne exeat, his motion to discharge
rule to show cause in contempt, and his motion to dismiss
complaint for rule in contempt be, and they all hereby aije,
overruled. j

T. ALAN GOLDSBOROUGH j

Justice

j

No objection to form of order,

ELMER E CUMMINS
Attorney for Defendant.

60 Motion for Rehearing and Reconsideration of the
Defendant’s Motion to Discharge Writ of Ne
Exeat for Want of Jurisdiction and Alternative
Motion to Discharge Writ of Ne Exeat on the
Merits

Comes now the defendant and moves the Court as follows!:
1. For a re-hearing and a reconsideration of the defen¬
dant’s motion to discharge the writ of ne exeat for want of

1

jurisdiction, which was heretofore filed in this cause, supp

ported by affidavits, and which was overruled by the Court

on February 20, 1941. This motion was based on the facjt

that the defendant was under indictment in the District of

Columbia for non-support; had been arrested in the Stats

of Nevada, where he was then residing; and the hearing oil

*

extradition was set on or about February 1,1941, which pro-j
ceedings would have resulted in his forcible return to thej

I

18

District of Columbia. The record further shows that the
defendant was advised that it would be necessary for him
to return and he was directed by his counsel to return before
February 1, 1941. The record further discloses that while
in the District of Columbia, to answer the indictment
against him, the Court issued a writ of ne exeat on the
plaintiff’s application.

2. The defendant, by counsel, also moves the Court in
the alternative, should the above motion be denied, that the
writ of ne exeat heretofore issued be quashed, and dis¬
charged, for the reason that the plaintiff’s petition for said
writ fails to set forth facts sufficient to warrant the issuance
of the said writ of ne exeat, and that the entire record fails
to show facts sufficient to authorize the issuance of the said
writ.

3. The defendant requests the Court to take testimony
in open Court on any disputed question of fact raised by the
pleadings which would bear on the question of whether the
writ was properly issued.

ELMER CUMMINS
ROBERT E. LYNCH
821 15th Street, N. W.,
Washington, D. C.,

Attorney for defendant.

15 Answer to Complaint for Buie in Contempt and
Bide to Show Cause Issued Thereon

The defendant, for answer to the complaint for rule in
contempt, states as follows:

1. He admits the allegations contained in paragraph one
of the Complaint.

2. He admits that he is in arrears the payment of alimony
from January 15, 1939, to date.

3. Answering the third paragraph, defendant denies
that he is in contempt of Court, for reasons which will here¬
after be shown, but does admit that the sum of $2400.00 is
due under the said order of Court.

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4. Defendant admits that he moved to Norfolk, Virginia,
in February of 1938, and states that this was done because
the firm with which he was employed moved to that city gnd
it was necessary that he reside in Norfolk for business pur¬
poses. He admits that he claimed that he was a resident! of
the State of Virginia at that time. Defendant admits that
he filed suit in the Virginia courts, but is without knowledge
as to the grounds on which the court disposed of said ca|se,
but is advised that an appeal was taken but that later shid
appeal was dismissed. Defendant admits that he filed a shit
for absolute divorce in September of 1940, in Reno, Nevada,
and states that as a result of said suit, he was granted! a
decree of absolute divorce from the plaintiff. The defen¬
dant is advised it is unnecessary for him to answer the legal
conclusions contained in said fourth paragraph of the cojn-
plaint.

Further answering the said fourth paragraph, defendalnt
states that he is not advised as to whether the plaintiff was
able to contest the Reno proceedings, but is advised that the
Court would have appointed an attorney for her or required
provision to be made for her expenses incident to the de¬
fending of said suit, had she wished to contest it.
16 Defendant denies that since July, 1939, he has re¬
mained away from the jurisdiction of this Court fqr
the purpose of evading process and to avoid the payment <j)f
alimony awarded in the final decree of this cause. He admits
that he has made several visits to the District of Columbia
and states that some of his visits were for many days, arjd
that the visits were not so timed as to avoid service of proc¬
ess, as he was here on week days on many occasions. De¬
fendant is without information as to the efforts of the plain¬
tiff to have him served with process and denies that any
failure was due to avoidance thereof or secretiveness sur¬
rounding his visits. Defendant states that since August of

1940, he has not been in the District of Columbia until hi!s
7 # 9
return in December of 1940, the details of which are ex¬
plained in other affidavits filed herein.

Defendant states that due to the fact that the firm with
which he was employed moved to Norfolk, Virginia, he was

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required to leave the District of Columbia on, to wit, Feb¬
ruary of 1938, and remained with the said firm until May,
1939, in Norfolk, Virginia. However, he states that he re¬
ceived no salary from January, 1939, for the reason that the
company became financially embarrassed; and as he had a
financial interest in the company, he and others were at¬
tempting to save the company from financial ruin. That
during most of the time that he was in Norfolk, Virginia,
and during the time that he was in Washington, D. C., before
leaving for Norfolk, he complied with the order of the Court
requiring him to pay $100.00 per month for the support of
his wife and child. It was not until he failed to receive
compensation for his services in January, 1939, that he
failed to make the payments as provided in the final decree
of this Court. Subsequent to May, 1939, he attempted to
secure work in Norfolk, Virginia, Washington, D. C., and
Maryland, but was unable to obtain any work for any period
of time except for a few jobs which were not enough to pay
a living wage. During the period from January, 1939, to
and including December, 1940, his total earnings approxi¬
mated $275.00, for this entire period.

Defendant admits the indictment in the District of Co¬
lumbia for non-support and the extradition proceedings,
but states that he was advised by his attorney that he should
come to the District of Columbia to answer said indictment
on or before February 1,1941, otherwise he would be extra¬
dited, and that is the reason for the defendant’s returning
to the District of Columbia.

Defendant denies that he is in the District of Co-
IT lumbia for the purpose of visiting relatives and that
he intends to return to Nevada, in order to resist
efforts to have him return to the District of Columbia in the
criminal proceedings, but states that he was advised that
he would have to answer the criminal proceedings and has
done so. He denies that he has ever remained away from
the jurisdiction of the District of Columbia for the purpose
of avoiding compliance with the decree of this Court or for
evading its processes.

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5. Answering the fifth paragraph of the Complaint, de¬
fendant denies that he remained out of the jurisdiction! to
defeat the decree of the Court or that he intends to leaive
the jurisdiction for the purposes of defeating the jurisdic¬
tion of this Court.

Defendant states that several years before the parties
hereto separated, the father of the defendant opened
account for the child of the parties hereto at the National
Metropolitan Bank of this City, which was controlled by the
plaintiff, and that defendant’s father made deposits frqm
time to time in said account for the benefit of the said child
and defendant believes that the plaintiff may have made
deposits from time to time. That the account reached the
sum of $445.00 on April 1, 1938. That in 1938, the sum bf
$100.00 was withdrawn from the said account by the plaih-
tiff and in 1939, the sum of $350.00 w T as withdrawn from the
account by the plaintiff; that there is now T the balance in tljie
said account of $34.68, as small deposits have been made in
1938, and accrued interest credited to the account whicjh
leaves the above balance. j

Defendant further states that the said plaintiff controllejd
an account for the said child in the Home Building Associa¬
tion, w T hich account in January of 1940, had a balance bf
$126.27, and increased to $138.02, as of September 9, 1946,
at vrhich time $100.00 was withdrawn by the plaintiff.

Defendant further states that there was another savings
account that defendant’s father had commenced for this
child at the National Metropolitan Bank of this City, whicti
was controlled by the defendant’s father. That the deposits
were made in this account until the same reached the sum of
$163.51, in April of 1940; and in June, 1940, $100.00 wa$
withdrawn from the said account, and in July, $50.00 was
withdrawm from the said account, w’hich sum of $150.00 was
sent to the plaintiff.

Defendant recognizes his obligation to abide bjj
18 the order of this Court and wdshes to comply with the*
same and is at present employed at the salary ofj
$20.00 per week, which employment has commenced as of|
February 15, 1941. That he has offered to pay towards the|

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support of his child the sum of $7.50 per week, but he has
been advised that the plaintiff has refused to accept this
sum.

Defendant states, upon information and belief, that the
plaintiff is employed at the salary of approximately $125.00
per month. Defendant further states that he attempted to
secure employment in and around Washington, D. C., Mary¬
land, and Virginia, from May, 1939, to August, 1940, but
was unable to do so, except for part-time work, which was
not sufficient to purchase his own food and clothing. He
had several contacts in Reno, Nevada, and had talked with
a party who was of the opinion that his chances for securing
employment there were good.

Wherefore, the defendant prays that the rule to show
cause may be discharged and the writ of ne exeat quashed,
and reserves all the matters heretofore set forth in a motion
to quash the said ne exeat heretofore filed in this cause.

CHARLES J. JACOBSEN

District of Columbia, ss:

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Charles J. Jacobsen, being first duly sworn, on oath de¬
poses and says that lie is the defendant in the above entitled
cause; that he has read the foregoing and annexed Answer
by him subscribed; that the statements of fact therein con¬
tained are true and those made upon information and belief
he believes to be true.

CHARLES J. JACOBSEN

Subscribed and sworn to before me this 27th day of Feb¬
ruary, 1941.

emily v. McKenzie

(Notarial Seal) Notary Public, D. C.

Com. Exp. 4/14/45.

ELMER CUMMINS
ROBERT E. LYNCH,

821 15th Street, N. W.,

Washington, D. C.,

Attorney for Defendant.

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19 Affidavit of C . F. Jacobsen

District of Columbia, s$:

C. F. Jacobsen, being first duly sworn, made oath that he
is the father of the defendant and states that he is Vice-
President of the Barker Lumber Company; a director ahd
stockholder to the extent that he owns one (1) share of stock.
Affiant states that he does not control the said Company <br
its policies and that his only financial interest in the said
Company is that he received a dividend of Four ($4.0())
Dollars on his one (1) share of stock for the year 1940.

C. F. JACOBSEN

I

Subscribed and sworn to before me this 27th day of Feb¬
ruary, 1941.

GEO B EARNSHAW
(Seal) Notary Public, D. C.

My Commission Expires Sept. 17, 1943.

64 Order Overruling Defendant’s Motion for Rehearing
and Reconsideration of Defendant’s Motion ip
Quash Service of Writ of Ne Exeat and to Dis¬
charge Writ of Ne Exeat

Upon consideration of the defendant’s motion for rehear¬
ing and reconsideration of the defendant’s motion to quash
service of writ of ne exeat and to discharge writ of ne exeat,
it is by the Court this 31st day of March, 1941,

Adjudged, Ordered and Decreed That the defendant’js
motion to rehear and reconsider be, and it hereby is, overj-
ruled, and the order of February 20, 1941 stand, and the
writ of ne exeat herein shall continue in force and effect^

T. ALAN GOLDSBOROUGH
Justice.

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65 Endorsed: Filed Apr 7—1941 Charles E. Stewart,
Clerk

Equity No. 58,909
Norvelle H. Jacobsen, Plaintiff
v.

Charles J. Jacobsen, Defendant.

Notice of Appeal

Notice is hereby given this 7th day of April 1941, that
Charles. J. Jacobsen hereby appeals to the United States
Court of Appeals for the District of Columbia from the
judgment of this Court entered on the 31st day of March,
1941, in favor of Norvelle H. Jacobsen against said Charles
J. Jacobsen

R E LYNCH
Attorney for Defendant

67 Endorsed: Filed Apr 10—1941 Charles E. Stewart,
Clerk

Assignment of Errors or Points on Which
Appellant Expects to Rely Upon Appeal

Comes now the appellant and assigns as errors committed
by the Court in the hearing of the above entitled cause the
following:

1. The failure of the Court to quash the Writ of Ne Exeat.

2. The action of the Court in continuing the Ne Exeat in
force and effect.

ELMER CUMMINS

ROBERT E. LYNCH
821 15th Street, N. W.,
Washington, D. C.,

Attorneys for Defendant.

Copy received this 10th day of April, 1941.

CHAS NORRIS JR.

Attorney for Plaintiff.